Finch v. Trent , 3 Tex. Civ. App. 568 ( 1893 )

A more critical examination of the record induces the belief, that at least one of the deeds under which appellee asserts title as a bona fide purchaser is a mere quitclaim, to-wit, the deed from F.W. Heyn to J.C. Crookshank, made only a few months prior to the deed from Crookshank to appellee. It recites the very inadequate consideration of $10; in terms bargains, sells, and quitclaims all the right, title, and interest of the grantor in and to an undivided one-third interest in and to the Cosmopolitan Hotel, as that interest may appear from a certain sheriff's deed therein referred to; and is endorsed "a quitclaim deed."

Following reluctantly the decision in Garrett v. Christopher,74 Tex. 453, we held, on the former hearing, that this, with other deeds in appellee's chain of title, was more than a mere conveyance of the chance of title, because of the controlling effect given by that decision to the usual habendum clause in the deed. We have concluded, however, that that clause of the deed in question is so far qualified by the concluding part thereof, especially when the whole deed is considered, as to take this case out of the rule announced in the Garrett-Christopher case. Here the habendum clause in the usual form concludes, "so that neither the said F.W. Heyn or my heirs, nor any person or persons claiming under me, shall at any time hereafter have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof."

We are of opinion that the deed, construed as a whole, is only a quitclaim, and that therefore the rule so long followed in this State (though now rejected by the Federal Supreme Court as without foundation in reason), that such a deed will not support a title depending alone upon a bona fide purchase, requires us to hold with appellant on this issue. Lumber Co. v. Hancock,70 Tex. 312. There is much force also in his further contention, so persistently urged in this motion, that appellee should be held to have had notice of appellant's title, on account of the character and extent of appellant's adverse possession.

The rehearing is granted, but the conclusions, both of law and fact, heretofore filed, in so far as they are not in conflict with this opinion, are still adhered to; and upon the whole record, the judgment appealed from will be reversed and here rendered for appellant.

Reversed and rendered.